Tamil Nadu

South Chennai

CC/382/2015

M/s.B.Ali Akbar - Complainant(s)

Versus

The Manager, City Bank , Home Loan Departments - Opp.Party(s)

M.Aravind Subramaniam

07 Jul 2022

ORDER

                                                   Date of Complaint Filed :  07.07.2015

                                                    Date of Reservation      :  29.06.2022

                                                    Date of Order                : 07.07.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:  TMT. B. JIJAA, M.L.,                                         : PRESIDENT

                      THIRU. T.R. SIVAKUMHAR, B.A., B.L.,        :  MEMBER  I 

                     THIRU. S. NANDAGOPALAN., B.Sc., MBA.,  : MEMBER II

 

CONSUMER COMPLAINT No.  382/2015

THURSDAY, THE 7^th DAY OF JULY 2022

Mr. B. Ali Akbar,

143, Karpagam Avenue,

Santhome,

Chennai- 600 028.                                                                                                                                                              ... Complainant     

 

..Vs..

1.The Manager,

   CitiBank,N.A,

   Home Loan Department,

   No.2, Club House Road,

 

2.The Customer Care,

   Citi Bank N.A.

   No.50, C.P Ramaswamy Road,

   3^rd Street, Abhiramapuram,

   Alwarpet, Chennai – 600 018.

 

3.The Manager,

   Shelters,

   “Maalavika Centre”,

   No.144, K.H. Road,

   Chennai – 600 034.                                                                                                                                                       ...  Opposite Parties

 

******

Counsel for the Complainant                  : M/s. M.Aravindsubramaniam

Counsel for the 1^st& 2^ndOpposite Parties  : M/s B. Dhanasekaran

3^rd Opposite Party                                : Given Up

       

On perusal of records and after having heard the oral arguments of the Complainant and the Counsel for the 1^st and 2^ndOpposite Parties, we delivered the following:

 

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.      The Complainant has filed this complaint as against the Opposite Parties under section 12 of the Consumer Protection Act, 1986 and prays to return the Original or certified copies of Agreement of Sale dated 19.07.1994 along with the Registration Receipts and Discharge Certificate which was mortgaged for Home Loans by the Complainant and to pay Rs.5,00,000/- as compensation towards humiliation, stress, strain and mental agony suffered by the complainant for loss of the document and to pay Rs.50,000/- towards cost of the complaint.

2. The averments made in the complaint in brief are as follows:-

        The Complainant had approached the 1^st Opposite Party for Home Loan for which he mortgaged the Original Sale Agreement dated 19.07.1994 in the name  of the Complainant for the property situated in Mumbai. The Mumbai Maha Nagara Palike has issued receipt in favour of Complainant after the Sale Agreement. The Complainant has paid maintenance charges for the said flat in subsequent years. The Complainant had cleared the loan through cheques in favour of the 1^st Opposite Party with a covering letter dated 26.06.1998 which was also acknowledged by the 3^rd Opposite Party. The 1^st Opposite Party had not released the original Sale Agreement to the Complainant. He wrote to the 1^stOpposite Party on 28.08.2014 requesting them to release the original Sale Agreement as the Complainant had cleared all the amounts due to the 1^stOpposite Party. The Complainant was shocked and put to great hardship when he came to know that  the original Sale Agreement  which

he mortgaged with the 1^stOpposite Party was missing. This was conveyed to the Complainant by the 1^stOpposite Party when he approached them to return the document which was mortgaged. This goes to show the negligent behaviour of the 1^stOpposite Party. In response to the Complainant’s letter dated 28.08.2014, the Complainant received an email dated 10.09.2014 wherein the 1^stOpposite Party directed to approach the 2^nd Opposite Party, who requested the Complainant to forward the copy of the Sale Agreement to the 2^ndOpposite Party, accordingly the Complainant had submitted the copy of the Sale Agreement with covering letter to the 2^ndOpposite Party on 21.11.2014.It is the duty of the 1^stOpposite Party to keep the original Sale Agreement with utmost care which is worth crores of rupees. The Complainant had sent legal notice dated 09.05.2015 to the 1^st and 2^nd Opposite Parties. In response to the notice dated 09.08.2015 the 1^stOpposite Party had responded that the sale agreement is not available in their custody and asked for the original Registration Receipt. The Complainant had submitted the Registration Receipt along with Sale Agreement document while availing the loan. It is the deficiency of the Opposite Party that they have lost the valuable document for which they are liable to compensate the Complainant. Hence the complaint.

3.Written Version of Opposite Parties 1 & 2 in brief are as follows:-

        The present complaint is barred by limitation under Section 24 A of the Consumer Protection Act, 1986. The Complainant had availed the Home Loan with the Opposite Party on 12.02.1994. The loan was closed

on 04.12.2004. Since the loan was closed on 04.12.2004, the cause of action if any arose at that point of time. The complaint is filed after a clear period of 10 years from the date of a possible cause of action. Thus the complaint is barred by time and it is liable to be dismissed on this ground alone without going into the merits of the case. The present complaint does not fall within the Pecuniary Jurisdiction of this Forum as the total claim is above Rs.20,00,000/- and hence the complaint is to be dismissed for want of Jurisdiction. The Complainant had availed Home Loan bearing No.400267 on 12.02.1994 from the Opposite Party for which the Complainant had mortgaged one property which is located in Mumbai. The loan was duly cleared by the Complainant on 04.12.2004. It is usual practice of all banks to release the original Sale Agreement mortgaged after clearing the loan amounts. However the Complainant approached the Opposite Party after the lapse of 11 years in order to harass and victimise the Opposite Parties, has come up with falls and frivolous  allegation by way of this complaint. For the sake of completeness and in the view to assist the Complainant, the Opposite Party checked its records and informed the Complainant that the Sale Agreement is not in their custody. The Opposite Party also checked with the Sub-Registrar Office Mumbai in order to recreate the document but the SRO had asked for the original Registration Receipt. That the Complainant was unable to furnish the same and tried to falsely assert that the sale was also submitted along with the Sale Agreement. The bank does not collect the original receipt. Hence the fact that the Complainant did not produce the Registration Receipt clearly points at his mismanagement of his own document and attempt to extract compensation from the Opposite Party. There is no negligence and unfair trade practice on the part of the Opposite Party which had acted with diligence and in good faith. Hence the complaint is to be dismissed.

4.   The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A- 11 were marked. The 1^st and 2^nd Opposite Parties submitted their Proof Affidavit and no document was marked on their side. The 3^rd Opposite Party was given up by the Complainant.

Points:-

1. Whether the complaint is barred by limitation?

2. Whether this Commission has Pecuniary Jurisdiction to entertain the complaint?

3. Whether the Opposite Parties had committed deficiency of service?

4. Whether the Complainant is entitled for compensation towards mental agony from the Opposite Parties and for any other relief/s?

Point Nos.1 to 4:-

Heard the arguments of both sides and perused the Exhibits of document filed by either side. The undisputed facts are that the Complainant had availed Home Loan from the 1^st Opposite Party on 12.02.1994 by mortgaging the original sale agreement dated 19.07.1994, Ex.A-1 in respect of the property situated at Mumbai. The Complainant had paid the entire loan amount due to the 1^st  Opposite  Party  and  the

 

loan  was closed and  the  Opposite  Party  had  admitted  that  the  loan  was  closed  on  04.12.2004. Even after clearing the loan amounts the 1^st Opposite Party has not released the original sale agreement deposited with the 1^st Opposite Party. The contention of the Opposite Party 1 and 2 is that the usual practice of all banks to release the original sale agreement mortgaged is after clearing the loan amounts. That the Complainant had approached the Opposite Party after the lapse of 11 years. In order to assist the Complainant, the Opposite Party checked its records and with the sub register office, Mumbai in order to recreate the document at the SRO asked for the Original Receipt which the Complainant unable to furnish and falsely asserted that the same was also submitted along with sale agreement.

The Opposite Parties by letter dated 13.03.2014, Ex.A-5 had assured to recreate the title document of the property at Mumbai belonging to the Complainant. However, as the Opposite Parties failed to keep their assurance and hence the Complainant had by his letter dated 28.08.2014, Ex.A-6 requested the Opposite Parties to help him in getting his original documents. In reply to the letter dated 28.08.2014 the Opposite Party sought for copy of the sale deed , which was furnished by the Complainant. Subsequently by legal notices dated 21.11.2014 and  09.05.2015, Exs.A-9 and 10, calling up the Opposite Parties to return the original sale deed document, which was responded by the Opposite Parties by letter dated 10.06.2015 vide Ex.A-11  seeking Registration Receipt copy to the search process at SRO, Mumbai.

 

The contention of the Opposite Party is that as the loan was closed on 04.12.2004, the cause of action if any arose at that point of time and the complaint is filed after a clear period of 10 years from the date of a possible cause of action and hence the complaint is barred by time. Though the Complainant had repaid the entire loan and the loan account was closed on 04.12.2004, subsequent correspondences between the Complainant and the Opposite Parties would reveal that the original Agreement of Sale deposited with the Opposite Parties at the time of availing Home loan was not returned to the Complaint. Further The Opposite Parties by letter dated 13.03.2014, Ex.A-5 had assured to recreate the title document of the property at Mumbai belonging to the Complainant and by letter dated 10.06.2015, Ex.A-11 sought Registration Receipt copy to the search process at SRO, Mumbai. There is continuous cause of action and period of limitation continues until the original Agreement of Sale is handed over by the Opposite Parties to the Complaint. Hence this complaint is within the period of limitation.

The Opposite Parties has raised the issue of pecuniary jurisdiction of this Commission in entertaining the complaint as the claim made in the Complaint is more than Rs.20,00,000/-. The Complainant has amended the prayer in the C.C.No.382 of 2015 by order dated 15.03.2019 passed by this Commission in  I.A.No.290 of 2018 in C.C.No.382 of 2015 to bring the Complaint within this jurisdiction. Hence this Commission has pecuniary jurisdiction to entertain the complaint.

In view of the above discussions it is clear that the Opposite Parties

after having received the entire dues towards home loan amount availed by the Complainant, had failed to return the original  Sale  Agreement to the Complainant which amounts to deficiency in service on the side of Opposite Party.

One of the main reliefs sought for by the Complainant is to return the original Agreement for Sale dated 19.07.1994 which was handed over while availing Home loan12.02.1994. Admittedly on 04.12.2004 the Complainant has cleared the Home Loan with the Opposite Party and had requested the Opposite Party to hand over the original Agreement for Sale. Steps has not been taken by the Opposite Parties to secure the interest of the Complainant in respect of the missing original Agreement of Sale dated 19.07.1994 as mentioned in their letter dated 13.03.2014 till date even after furnishing of the copy of the Agreement of Sale as required by them. Further as admitted that the Opposite Party had searched for the missing document from it records and also checked with Sub Registrar Office, Mumbai in order to recreate the document, it is explicit that the Opposite Parties has not returned the original document which was deposited by the Complainant at the time of availing Home loan. Hence it is clear that the Opposite Parties have committed deficiency of service by not returning back the original document submitted by the Complainant. Therefore we hold that the Opposite Parties by not retuning back the Original Agreement for Sale dated 19.07.1994 which was handed over by the Complainant at the time of availing Home Loan on 12.02.1994 had committed deficiency in service.  

 

In the said circumstances we are of the considered view that the Opposite Parties be directed to return the original Sale Agreement dated 19.07.1994 which was mortgaged towards the Home Loan availed by the Complainant and the discharge certificate, or to take alternative steps to secure  the  interest  of  the  Complainant by adopting the legal procedures in obtaining the missing   Agreement for Sale dated 19.07.1994 in the manner known to law within 8 weeks from the date of this order, on failure to do so, the Opposite Parties shall monetarily compensate the Complainant,  Accordingly point No.1 to 4 are answered in favour of the Complainant.

 In the result the complaint is partly allowed. The Opposite Parties 1 and 2 are jointly and severally directed to return the original or certified copy of the Sale Agreement dated 19.07.1994 which was mortgaged towards Home Loan availed by the Complainant and the discharge certificate to the Complainant, failing compliance to pay a sum of Rs.1,00,000/-(Rupees One Lakh Only), and to pay a sum of Rs.1,00,000/-(Rupees One Lakh Only) as compensation towards humiliation, stress, strain and mental agony suffered by the Complainant for the loss of document and to pay a sum of Rs.5000/- (Rupees Five Thousand Only) towards cost towards litigation cost.

The above amounts shall be payable within 8 weeks from the date of this order, failing compliance the said amounts shall carry interest @ 6% from the date of the order till the date of realization.

In the result the complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 7^th of July 2022.

 

 

S. NANDAGOPALAN                                                              T.R. SIVAKUMHAR                                                             B.JIJAA

      MEMBER II                                                                                MEMBER I                                                                  PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	19.07.1994	Agreement of Sale
Ex.A2	22.06.1998	Letter from Complainant to 1st  Opposite Party.
Ex.A3	26.06.1998	Letter from Complainant to 1st Opposite Party acknowledged by 3rd Opposite Party
Ex.A4	16.06.2013	Receipt issued by Mumbai Maganagara Palike in the name of complainant.
Ex.A5	13.03.2014	Letter from 1st Opposite Party to Complainant.
Ex.A6	28.08.2014	Letter from Complainant to 1st Opposite Party.
Ex.A7	10.09.2014	Letter from 1st Opposite Party to Complainant.
Ex.A8	01.10.2014	Maintenance Receipt in the name of Complainant.
Ex.A9	21.11.2014	Letter from Complainant to 1st Opposite Party
Ex.A10	09.05.2015	Legal Notice issued Counsel for Complainant to Opposite Parties 1 to 3 with a ack. Card.
Ex.A11	10.06.2015	Reply to the legal notice by 1st Opposite Party.

 

 

 

 

 

 

 

 

 

 

List of documents filed on the side of the 1^st and 2^nd Opposite Parties:-

NIL

 

 

 

S. NANDAGOPALAN                                                      T.R. SIVAKUMHAR                                                                     B.JIJAA

         MEMBER II                                                                    MEMBER I                                                                          PRESIDENT